FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Darley (No 3) [2023] FedCFamC1A 126
Appeal from: Darley & Darley (No 6) [2023] FedCFamC1F 537 Appeal number: NAA 199 of 2023 File number: BRC 2317 of 2013 Judgment of: AUSTIN, harper & campton JJ Date of judgment: 9 August 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks leave to circumvent a vexatious litigant injunction to enable her to appeal from orders – Where injunction was previously made prohibiting the applicant from instituting proceedings under the Family Law Act 1975 (Cth) against the father or the Independent Children’s Lawyer without first obtaining leave to do so – Where the primary judge dismissed the applicant’s application to review orders of a registrar prohibiting the recording of proceedings and requiring the preparation of a Family Report – Where appeals only lie from judgments – Where an appeal from the primary judge’s order would fail for lack of merit – Where the intended appeal lacks reasonable ground and is therefore vexatious – Application dismissed. Legislation: Criminal Code Act 1995 (Cth)
Family Law Act 1975 (Cth) Pt VII, Div 6, ss 45A, 60CC, 62G, 69ZX, 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 46, 56, 69, 76
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.23
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Darley & Darley (No 6) [2023] FedCFamC1F 537
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Harrell [2021] FamCAFC 119
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Number of paragraphs: 44 Date of hearing: Determined in chambers on the papers The Applicant Litigant in person ORDERS
NAA 199 of 2023
BRC 2317 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DARLEY
Applicant
order made by:
AUSTIN, Harper & campton JJ
DATE OF ORDER:
9 August 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 28 July 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, HARPER & CAMPTON JJ:
This is another application by the applicant for leave to circumvent a vexatious litigant injunction to enable her appeal from an order made on 3…
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CaseChat Overview and Summary
The case of Darley (No 3) involves the applicant, a mother, seeking leave to appeal against the dismissal of her application for review of certain orders made in family law proceedings. The dispute revolves around orders made by a registrar in the Family Court of Australia concerning the conduct of a trial in proceedings brought by the father under Part VII of the Family Law Act 1975 (Cth). The application for review was dismissed by a primary judge, and the applicant now seeks leave to appeal that decision.
The primary legal issues before the court were whether the proposed grounds of appeal were sufficient to warrant leave under s 102QF of the Family Law Act. The applicant advanced several grounds of appeal, including assertions of error in law, bias, and failure to apply the paramountcy principle. The court had to determine if these grounds were reasonable and, therefore, if the proposed appeal was not vexatious.
The court found that the proposed grounds of appeal were either misconceived, misguided, or specious. The court held that the applicant's dissatisfaction with the primary judge's decision did not constitute reasonable grounds for appeal, and the proposed appeal was misconceived on several fronts, including the assertion that the primary judge failed to apply certain provisions of the Criminal Code Act 1995 (Cth) and that he did not apply the paramountcy principle. The court concluded that the proposed appeal was vexatious and dismissed the application for leave to appeal.
In conclusion, the court dismissed the application for leave to appeal on the basis that the proposed grounds of appeal were misconceived and did not warrant leave under s 102QF of the Family Law Act. The court held that the applicant's dissatisfaction with the primary judge's decision did not constitute reasonable grounds for appeal, and the proposed appeal was therefore vexatious.
The primary legal issues before the court were whether the proposed grounds of appeal were sufficient to warrant leave under s 102QF of the Family Law Act. The applicant advanced several grounds of appeal, including assertions of error in law, bias, and failure to apply the paramountcy principle. The court had to determine if these grounds were reasonable and, therefore, if the proposed appeal was not vexatious.
The court found that the proposed grounds of appeal were either misconceived, misguided, or specious. The court held that the applicant's dissatisfaction with the primary judge's decision did not constitute reasonable grounds for appeal, and the proposed appeal was misconceived on several fronts, including the assertion that the primary judge failed to apply certain provisions of the Criminal Code Act 1995 (Cth) and that he did not apply the paramountcy principle. The court concluded that the proposed appeal was vexatious and dismissed the application for leave to appeal.
In conclusion, the court dismissed the application for leave to appeal on the basis that the proposed grounds of appeal were misconceived and did not warrant leave under s 102QF of the Family Law Act. The court held that the applicant's dissatisfaction with the primary judge's decision did not constitute reasonable grounds for appeal, and the proposed appeal was therefore vexatious.
Orders
Orders of the court
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Background
Background to the litigation
The application is dismissed for the following reasons.BACKGROUND Several years ago, on 23 August 2019, an order was made pursuant to s 102QB of the Act prohibiting the applicant from instituting proceedings against the father or the Independent Children’s Lawyer without first obtaining leave to do so under s 102QE of the Act. The injunction was made in these terms:1.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the applicant mother be prohibited from instituting proceedings against [the father] or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act. Fresh proceedings were later commenced by the father under Pt VII of the Act and are now listed for trial before the primary judge in late August 2023. The applicant is not precluded by the s 102QB injunction from responding to and contesting those proceedings. The registrar conducted a directions hearing in respect of the proceedings on 25 May 2023 and made a suite of procedural orders, including:(a)setting the proceedings down for trial in August 2023 (Order 1);(b)prohibiting the lawyers, the parties and witnesses from recording any part of the proceedings (Order 3);(c)setting the timetable for documents to be filed in readiness for the trial (Orders 4–7); and(d)ordering the preparation of a family report under s 62G of the Act and making incidental orders for interviews with the Family Consultant, the inspection of documents produced under subpoena, and the inspection of the Court file (Orders 13–20). The applicant filed an Application for Review on 15 June 2023, but seeking review of only selected orders, being the order prohibiting the recording of the proceedings (Order 3) and the orders requiring the preparation of the Family Report (Orders 13–20). The review application was listed for hearing before the primary judge on 28 June 2023. Judgment was reserved and delivered shortly thereafter on 3 July 2023 (Darley & Darley (No 6) [2023] FedCFamC1F 537). The review application was dismissed. The reasons which accompanied the dismissal order contained this:11.By paragraph 3 of the judicial registrar’s order all parties are prohibited from recording any part of the proceeding. The mother advanced no submissions about that order or why the mother sought a review of it. The conduct of the trial is wholly within the control of the trial judge. Prohibiting the dissemination of information otherwise captured by s 121 of the Family Law Act is also a matter for the trial judge. In the reasons of [another judge] dated 17 March 2023, his Honour expressed significant concern that the mother had filed voluminous affidavit material and other documents. 12.Yet paragraph 3 of the 25 May 2023 orders applied not only to the mother but also to all parties, their legal representatives and any witnesses in the proceeding. The mother advanced no submission in relation to paragraph 3 of the judicial registrar’s orders.13.The mother sought the review of paragraph 13 of the order made 25 May 2023. Those related to the provision of the family report to be used in this litigation. The mother’s case in this litigation is that the family report that has been prepared should be destroyed by court order on the basis that the family consultant did not read and consider the totality of the documentation filed in this proceeding.14.At the outset I refuse that application. The use of which the trail judge makes of the family report is squarely within the control of the trail judge. Likewise, any cross-examination about the family report, what the report writer considered, who the report writer interviewed and the issues canvassed with relevant persons is entirely within the control of the trial judge. [The trial judge] will make evidentiary rulings. [The trial judge] should address this issue in the conduct of the trial. The use made of the family report is not a proper matter for a judge dealing with a review application.15.The father informed me that the entirety of his case in this proceeding was reposed in the family report. In those circumstances, any determination about any aspect of the family report including its admissibility is properly a matter for the trial judge, not for a judge conducting a review application.16.The wife submitted that I needed to hear and determine contravention applications brought by her and that those applications had to be determined ahead of the trial. In debate with the mother it transpired that the mother sought orders concerning the determination of her contravention application so that she could submit to the trial judge that the husband should not be believed in his evidence in this case by reason of his being found to have contravened one or more orders previously made.17.Having regard to the proximity of the trial, it seemed to me that questions of compliance or otherwise with orders previously made should be determined by the trial judge. The mother was emphatic in her rejection of that notion. She said she wanted the forensic advantage of going to trial with the benefit of a finding that the father had contravened one or more orders.18.Aside from the fact that any such contravention application would require the allocation of judicial hearing time and that this proceeding is next before [the trial judge] on 5 July 2023 (two business days), I have misgivings about taking away from the trial judge the ability to assess each witness’s veracity uninfluenced by a finding on a contravention application.19.I was unable to allocate time prior to 5 July 2023 to hear any such contravention application.20.The mother sought recovery orders. That should be determined at trial. The trial is only a few weeks away. Further, if the mother presses for recovery orders ahead of the trial, she can bring that application before [the trial judge] on 5 July 2023.21.In my view, the mother’s review should be dismissed. All issues in this litigation should be addressed by the trial judge.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Such grounds include assertions that:(a)the primary judge erred at law by failing to observe his Honour’s judicial oath of office (Ground 1) – which assertion is specious;(b)his Honour was actually or ostensibly biased (Grounds 4, 5 and 7) – which complaints did not found any disqualification application at the time of the hearing before the primary judge and appear to arise merely as a consequence of the applicant’s dissatisfaction with the primary judge’s decision and reasons for judgment;(c)the primary judge “doctored his orders” (Ground 12) – which assertion is specious;(d)his Honour committed a criminal offence (Ground 14) – which assertion is specious;(e)his Honour failed to apply certain provisions of the Criminal Code Act 1995 (Cth) (Ground 3) – which is entirely misguided, since the primary judge was exercising jurisdiction in only a civil cause of action;(f)the primary judge erred by not making orders about alleged contraventions of orders (Grounds 8, 9 and 10) – which is misguided because none of the registrar’s orders under review concerned any contravention application and none of the supplementary orders sought from the primary judge concerned a contravention application; and(g)the primary judge did not apply the paramountcy principle (Ground 13) – which is also misguided because, aside from the application for summary judgment which was bound to fail for the reasons already given, the primary judge was not exercising any discretion under Pt VII, Div 6 of the Act.CONCLUSION The proposed appeal lacks “reasonable ground” because it is misconceived. It is therefore vexatious (s 102Q(1)) and the application for leave to bring it must be dismissed (s 102QF(2)).
Ratio Decidendi
Legal Principle Established
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